London Borough of Richmond upon Thames (18 010 529)

The Ombudsman's final decision:

Summary: Mrs X complained that the Council forced her to appeal twice to the Tribunal during the process of issuing her son’s Education, Health and Care (EHC) Plan and then conceded the matters being appealed before the hearings took place. Mrs X says this needlessly delayed the issuing of her son’s EHC Plan. There was no fault in time the Council took to issue her son’s EHC Plan. And I do not have the jurisdiction to investigate Mrs X’s complaint that the Council twice conceded her appeal.

The complaint

Mrs X complained that the Council forced her to appeal twice to the Tribunal during the process of issuing her son, Z’s, Education, Health and Care (EHC) Plan and then conceded the matters being appealed shortly before the hearings took place. Mrs X says this needlessly delayed the issuing of her son’s EHC Plan.

As a result, Mrs X says Z missed out on support he needed and the family incurred financial costs because it had to retain a barrister.

The Ombudsman’s role and powers

We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))

We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)

What I found

Section 4 of the Regulations states that if a parent requests an assessment for an EHC Plan, the council must inform the parent whether it intends to carry out the assessment within 6 weeks of the request. If the council decides not to carry out an assessment, the parent can appeal to the Special Educational Needs and Disability Tribunal (the Tribunal).

Section 10 of the Regulations state that the council must carry out the assessment and inform the parent whether or not it will issue an EHC Plan within 16 weeks of the parent’s request for an assessment. If the council decides not to issue an EHC Plan, the parent can appeal to the Tribunal.

If the child’s parent lodges an appeal and the council decides not to oppose this appeal, Section 45 of the Regulations state the council must inform the Tribunal of its decision and:

issue a draft EHC Plan within 5 weeks of the date of the notification; and

send a copy of the finalised EHC Plan to the child's parent or the young person within 11 weeks of the date of the notification.

What happened

Z has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and Autistic Spectrum Disorder (ASD) and associated sensory processing and other disorders.

Mrs X and her family used to live in a different local authority area. In January 2017, when Z was in Year 6, she asked the local authority to assess Z to see if he required any special educational provision. The local authority agreed to do so, but then failed to carry the assessment out.

In May 2017, Mrs X and her family moved to the London Borough of Richmond upon Thames. The Council agreed to honour the previous local authority’s decision to assess Z.

The Council informed Mrs X on 14 September 2017 that it would not issue Z with an EHC Plan. Mrs X lodged an appeal with the Tribunal.

Z moved to secondary school in September 2017. He started at an independent school which had provision for pupils with ADHD and ASD.

On 21 November 2017, before the Tribunal hearing, the Council reconsidered its decision and decided it would issue Z with an EHC Plan.

The Council issued the draft EHC Plan on 11 December 2017. Mrs X was unhappy with some of the special education provision in the EHC Plan but the Council refused to make the amendments and issued the final EHC plan on 5 February 2018.

Z’s final EHC Plan named the type of educational placement as a mainstream maintained school.

Mrs X lodged a second appeal with the Tribunal about the provision and the type of educational placement named in the EHC Plan.

On 17 September 2018, the day before the hearing was due to be held, the Council conceded. It agreed to fund some additional special educational provision and to name the independent school Z was attending.

Mrs X was unhappy with the fact she had to go to the Tribunal twice about matters which the Council then conceded shortly before the hearings. She complained to the Council and then to the Ombudsman.

My findings

Requirement to appeal to the Tribunal

The Act and the Regulations set out the timescales for each stage of the EHC Plan process and also specify the stages when a parent can appeal. When an appeal is lodged, the Council can choose to oppose it and go to Tribunal or to concede the appeal before the date of the hearing.

In this case, Mrs X appealed the Council’s decisions twice. In both cases, the Council conceded shortly before the date of the hearing. Understandably, Mrs X found this frustrating, because in both cases she had hired a solicitor and also retained a barrister at a considerable cost. She was unable to recover these costs from the Council even though it had conceded.

However, the law says the Ombudsman cannot investigate a complaint if someone has appealed to a Tribunal. In this case, Mrs X appealed twice to the Tribunal. Therefore, the matters she complains about are outside our jurisdiction. I have not investigated these matters further.

Timescales for issuing the EHC Plan

Mrs X moved to the Council area in May 2017. Also in May, the Council informed Mrs X that it would assess Z. This was within the legal timescales of 6 weeks.

The Council assessed Z and 16 weeks later, on 14 September, it informed Mrs X it would not issue Z with an EHC Plan. This fell just within the timescales of 16 weeks which are laid down in the Regulations.

Mrs X appealed the Council’s decision and the Council conceded on 21 November. It then had 5 weeks to issue Z’s draft EHC plan and 11 weeks to issue the final EHC Plan.

The Council issued the draft EHC Plan within 3 weeks and the final EHC Plan just within the 11 week deadline.

Therefore, I cannot say the Council acted with fault and delayed issuing Z’s EHC Plan.

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